As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the marriage between the parties is dissolved by decree of divorce for the reasons stated in paras 12 to 19.

Besides the instances of cruelty detailed in the petition, there was another instance of cruelty i.e. the scandalous allegations leveled by the respondent against the appellant of illicit relationship with one Parvinder Kaur. This allegation was made by the respondent in the cross examination of the appellant as against all settled law, the learned Trial Court wrongly rejected this ground of cruelty by simply holding that one single act cannot be treated as cruelty. The relevant part of the judgment to this effect is reproduced hereunder :

“…The counsel for petitioner has contended that the respondent has also inflicted cruelty upon the petitioner as during cross examination, it was suggested to him that he had illicit relations with one Parvinder Kaur and was residing with the said woman. The counsel for petitioner objected to said cross examination of the petitioner being beyond pleadings of the respondent, so, counsel for respondent was not allowed to put further question to that effect to the petitioner. Admittedly, there are no pleadings of the respondent that the petitioner had illicit relations with one Parvinder Kaur and this suggestion to the petitioner was given beyond pleadings. Even perusal of the testimony of the respondent shows that once she had tried to contact the petitioner when he was residing at Rohini, she found one another lady inside the house and petitioner on that occasion had asked the respondent to leave the place or he would break her legs and throw her from the fourth floor. This incident appeared to have taken place subsequent to the filing of the petition and it should have been brought on record by the respondent through her counsel as subsequent event, however, it has not been done so in the present case. No doubt, leveling of scandalous allegations without proof do amount to mental cruelty but in the present case, keeping in view the totality of the circumstances and the conduct of the petitioner one single act of the respondent that she disclosed before the court that petitioner was found living with another woman cannot be treated as cruelty for dissolution of their marriage, particularly, when the respondent till date wants to keep her thirty years old marriage with the petitioner alive….”

It is the admitted position that the parties are living separately since January, 1995, i.e. for more than sixteen years. The allegations of cruelty is also such which makes reconciliation between the parties have “irretrievable broken down” and as such there is no reason to carry on with the broken or dead marriage and continuation with such a marriage will cause further mental cruelty to the appellant. In such cases, it is expedient and necessary to dissolve the marriage with decree of divorce as it has been held in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511, the relevant part is reproduced hereunder :

“Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavor to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.”

In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )

“Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”

Divorce on Grounds of Cruelty under Hindu Marriage Act, 1955

(Where the wife leveled false allegations of illicit relationship with another Lady.)

In Hemwanti Tripathi vs. Harish Narain Tripathi, 181 (2011) DLT 237, it is also held that :

“14……..That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Bachman (supra) wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations. What surprises this Court the most is that despite the fact that the Trial Court gave the entire findings in favour of the Appellant but still passed the judgment against the Appellant merely on the ground that the acts alleged by the Petitioner against the Respondent at best can be termed as wear and tear of daily life and does not amount to cruelty. The learned Trial Court further held against the Appellant because she failed to produce any close relative including her uncle who was living in neighborhood to prove the instance of beatings given by the Respondent on various dates. This Court fails to comprehend as to how such a view could be taken by the learned Trial Court as clearly serious and malicious allegations of the Appellant having relationship with one Sadhu and her staying out of the house during nights also levelled by the Respondent and as per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty. It has not been denied by the Respondent that no evidence was led by him to prove that the Appellant used to go out during night to stay with that Sadhu. The Respondent has also not given any reasons in the Ex. PW 1/1 to severe his relationship with the Appellant.

In the matter of : AJEET PANWAR Vs BABITA ( Delhi High Court).

It is a case where not only false allegations were made against the appellant/husband and in-laws but they were also got arrested and later on acquitted on charges being found to be false. This in itself amounts to cruelty. Even the attempt by the respondent/wife to commit suicide so as to get his in-laws including unmarried Nanad and married Nanad implicated in itself is an act of cruelty on her part upon her husband and in-laws.

Learned Judge Family Court failed to consider all these aspects while dismissing the petition seeking divorce on account of cruelty. Learned Judge Family Court failed to note that in matrimonial pleadings appellant was not required to establish the case beyond reasonable doubt like any criminal trials but on preponderance of probabilities. Both the acts independently were sufficient to prove cruelty and grant of a decree of divorce to the appellant/husband.

The learned Judge Family Court in our estimate failed to approve and appreciate the pleadings of the parties and their evidence under correct legal perspective.

Divorce granted to husband on Grounds of cruelty, Desertion and False criminal Cases.

“The contention of the husband was that the appellant was in the habit of quarrelling with him on petty issues without any cause and reason and had even refused to prepare food for him and do the household chores. She also humiliated him in the presence of his friends on several occasions by refusing to serve them tea. The appellant never wanted to stay with him or his parents at the village and always used to force him to drop her at her parental home; she did not have any love and affection for him and his parents; that the appellant had also pressurised him to leave the job and settle down in Delhi; he bought a land in Burari and constructed two storey house from his savings but the appellant preferred staying in her parental home at Gulabi Bagh, Delhi and used to come to their newly constructed house once a week. The husband had all along supported the appellant and their children financially as well as morally. When the construction of the house was completed, the appellant had refused to live with him at the place of his posting. She also forced her mother-in-law to leave the house who thereafter started living in her native village. She used to say that “yeh log hamare status kay neie hain.”

On these facts, the respondent/husband had alleged that he had suffered severe mental agony, tension, harassment and distress and that the behaviour of the appellant had caused him great anguish and amounted to cruelty. He had alleged that the appellant had also deserted him since she had refused to live with him. He had also averred that they had been living separately since March 2006 and it was not possible for him to continue living with her since there was a danger to his life and limb.

The first contention of the appellant is that the learned Family Court has given undue weightage to the evidence of the respondent and has discarded the evidence of the appellant. However, this contention has no merit. On the contrary, the evidence on record (including that of the appellant) was duly considered and distinguished and elaborately discussed in the impugned judgment and only thereafter the conclusion was drawn. Record shows that the appellant had examined herself alone in support of her pleas but here is no corroboration to her testimony. Several contradictions in her testimony have been discussed in the impugned judgment. Even otherwise, the burden to prove that the respondent/husband was subjected to cruelty by the appellant, was upon him and it was for him to discharge the same by leading cogent evidence.

The settled proposition of law in civil proceedings is that the principle of proof of a fact is established on a preponderance of possibility and the respondent/husband is not required to prove his case beyond a reasonable doubt. If the evidences on record points out to the existence of a particular fact, then the said fact can be accepted as having been proved. We may note that the expression “cruelty” has not been defined under the HMA. Cruelty can be mental or physical. It is easy for a party to prove physical cruelty, but mental cruelty depends on various factors.

. In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at (2002) 2 SSC 296, the Supreme Court had observed that false police complaints would result in mental cruelty as it leads to loss of reputation and standing in the society at the instance of one’s spouse. The act of leveling of unsubstantiated charges of adultery against the husband not only during the stay of the spouses together, but also during the divorce proceedings was treated as an act of cruelty on the part of the wife. In R. Balasubramanian vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311, the Supreme Court held that an

unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage.

In the case titled Santosh Sahay vs. Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of this Court has held that false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged spouse is entitled to seek divorce on that ground.

—————————————————————————————————————————————–

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ MAT.APP.(F.C.) 95/2017, CM No. 19921/2017, CM No. 19923/2017

SANTOSH ….. Appellant

versus

HORI LAL ….. Respondent

CORAM:

HON’BLE MR. JUSTICE HIMA KOHLI

HON’BLE MS. JUSTICE DEEPA SHARMA

HON’BLE MS. JUSTICE DEEPA SHARMA

Vide the present appeal, the appellant has challenged the order dated 31.03.2017 passed by Principal Judge (Family Court), Tis Hazari, Delhi whereby her marriage with the respondent was dissolved under Section 13 (1) (ia) & (ib) of Hindu Marriage Act, 1955 (hereinafter referred to as “HMA”).

As per the admitted facts, the marriage between the appellant and the respondent was solemnized in Delhi on 29.06.1993, according to the Hindu rites and ceremonies. The marriage was consummated and two children, one female and one male child were born from out of this wedlock. The respondent has been working with the Border Road Organization and at all times, has remained posted at different border areas of the country.

The petition for divorce was filed by the respondent (hereinafter referred to as “respondent/husband”). The case of the husband was that the marriage was very simple and after the marriage, he took the appellant to the matrimonial home at Village Bhopal Garhi Post Kurhar Distt, Etah, UP and stayed there for about 40 days. When he left for his duty, he left the appellant at her parental home on her request. After some time, the appellant joined him at his place of posting at Arunachal Pradesh where they stayed happily. She became pregnant and insisted upon the respondent/husband that she will deliver the first child at her parental home at Delhi and so, he brought her to Delhi and left her at her parental home. A female child was born on 29.03.1994. After about two months i.e. in May 1994, he took the appellant to his place of posting i.e. Arunachal Pradesh along with the minor daughter. The second child was born on 04.05.2002.

The contention of the husband was that the appellant was in the habit of quarrelling with him on petty issues without any cause and reason and had even refused to prepare food for him and do the household chores. She also humiliated him in the presence of his friends on several occasions by refusing to serve them tea. The appellant never wanted to stay with him or his parents at the village and always used to force him to drop her at her parental home; she did not have any love and affection for him and his parents; that the appellant had also pressurised him to leave the job and settle down in Delhi; he bought a land in Burari and constructed two storey house from his savings but the appellant preferred staying in her parental home at Gulabi Bagh, Delhi and used to come to their newly constructed house once a week. The husband had all along supported the appellant and their children financially as well as morally. When the construction of the house was completed, the appellant had refused to live with him at the place of his posting. She also forced her mother-in-law to leave the house who thereafter started living in her native village. She used to say that “yeh log hamare status kay neie hain.”

The husband had referred to the incidents that took place in February 2006, which ultimately culminated in their separation. He alleged that on MAT.APP.(F.C) 95/2017 Page 3 26.02.2006, he had informed the appellant, on telephone, at around 8 p.m. that his father was unwell and that he was taking leave to visit him and asked her to accompany him to the village. However, once he reached Delhi, the appellant refused to accompany him to the village. She also refused to join him at his place of posting along with the children. She and her parents beat him on his visit to her parental home. He visited his house at Burari on 04.03.2006 where the appellant and her parents quarrelled with him and registered a false case against him under Section 107/150 of CrPC. He left for his village on 05.03.2006 and returned to Delhi on 07.03.2006 and went to his house at Burari and found that the appellant had removed all the household goods and had filed a false complaint under Section 498A/406/34 of IPC before Crime against Women Cell after 13 years of their marriage, alleging inter alia that he had demanded dowry of Rs. 35.00 lakhs. The respondent/husband was arrested in the FIR No. 61/2006 on 04.04.2006 and remained in judicial custody for about 20 days. With the help of police, the appellant removed the remaining articles from his house at Burari. She also removed all the jewellery lying in the locker at State Bank of India, Pratap Nagar, Delhi on 06.03.2006. She also filed several civil and criminal cases against him and his relatives on false and frivolous MAT.APP.(F.C) 95/2017 Page 4 grounds, just to harass and torture the husband. The appellant did all this with the intention of extracting more money from him and his relatives. Details in this respect have been furnished by the husband in para No. 15 of his petition. It was also averred that she had filed various complaints against the husband in different departments and authorities, which on investigation, were found to be false and baseless and that she had been making defamatory complaints against him and his family members.

On these facts, the respondent/husband had alleged that he had suffered severe mental agony, tension, harassment and distress and that the behaviour of the appellant had caused him great anguish and amounted to cruelty. He had alleged that the appellant had also deserted him since she had refused to live with him. He had also averred that they had been living separately since March 2006 and it was not possible for him to continue living with her since there was a danger to his life and limb.

The suit was contested by the appellant who filed her written statement wherein she had denied all the averments in the plaint, being false. She had further averred that she was forced to withdraw the FIR and other proceedings filed by her under compelling circumstances and since she did not want to take divorce from the husband, she did not file any suit MAT.APP.(F.C) 95/2017 Page 5 for divorce and that the respondent was taking undue advantage of his own wrong doings and that of his parents, sisters and brother-in-law. Her contention was that it was she, who had been treated with utmost cruelty by the husband and his family members. Her husband failed to maintain her and their two children and they were at the mercy of her father for day-to- day necessities and their school fees was also paid by her father. As per her version, their marriage was solemnised with great pomp and show and her parents had spent lakhs of rupees on their marriage and dowry articles, gifts and cash was given in the marriage which did not satisfy the husband and his family members who kept on raising demands and started harassing and treating her with cruelty, forcing her to fulfil their demands for brining additional dowry and cash amounts.

The appellant claimed that the respondent/husband demanded a Santro car on 28.02.2006 which her parents failed to provide. This refusal enraged the husband. He and his brother asked her to sign on certain blank papers and on her refusal to do so, and in view of the inability of her parents to provide a new Santro car, the respondent/husband got so infuriated that he did not allow her to enter the house. She was beaten by him and his other relatives and sustained injuries. She admitted that she MAT.APP.(F.C) 95/2017 Page 6 had filed a complaint under Section 107/150 of the CrPC against him and his family members on 04.03.2006. It was also contended that she was forced to live in Delhi with her parents because husband refused to keep her at the place of his posting for the reason best known to him.

It was further averred by the appellant that she had been fulfilling all the obligations as a devoted wife and had always remained faithful to the respondent; she was always ready and willing to accompany the respondent/husband to his native village to look after her ailing father-in- law but he had refused to take her along with him to the village. On 04.03.2006 when she was beaten up, she had been medically examined. It was contended that it was her father who had purchased plot no. 55, Block A, Gali No. 8/1, Kaushik Enclave Swaroop Nagar Road, Burari, Delhi measuring 100 square yards in her name and constructed double storeyed house over it; that the husband had fraudulently procured her signatures on a General Power of Attorney executed in his favour and sold the house first to his brother, Sh. Bhopal Singh on 08.03.2006 and thereafter, to Mr. Satish Sisodia for a sum of Rs. 6,25,000/- and mis-appropriated the sale proceeds. The appellant urged that the respondent/husband could not be allowed to MAT.APP.(F.C) 95/2017 Page 7 take advantage of his own wrong and thus, was not entitled for a decree of divorce.

On the basis of the pleadings of the parties, on 26.08.2009, the learned Trial Court had framed the following issues:-

“(1) Whether the respondent has treated the petitioner with cruelty? (OPP)

(2) Whether the respondent has deserted the petitioner for a period of more than two years before the filing of the present petition? (OPP)

(3) Relief.”

Both the parties had led their evidence. The respondent/husband had examined five witnesses in support of his case. In his statement, the petitioner/husband proved on record, the complaints filed by the appellant against him and marked as A to E. He also summoned a witness from the bank to prove that locker bearing no. 192 in the joint name of the parties was lastly operated by the appellant on 06.03.2006. The said record was exhibited by the witness as Ex.PW 2/1 to Ex. PW 2/5. The appellant, however, examined herself alone in support of her case. After hearing the parties at length and considering the evidences on record, the learned Trial Court reached the conclusion that the appellant had treated the respondent with cruelty and that she had deserted him without any just cause and resultantly, dissolved their marriage. Hence the present appeal.

The appellant has challenged the impugned order on the grounds that the learned Family Court has not properly appreciated the evidence on record and did not take into consideration the torture and the harassment she was subjected to; that reliance on the evidence of the respondent and rejection of the testimony of the appellant is unfounded; that the learned Family Court failed to consider the contradictions in the testimony of the respondent and the fact that the husband has not been able to produce any corroborative evidence to prove the allegations levelled by him against the appellant; that the Family Court failed to take into account the fact that it was the respondent who had treated the appellant with cruelty and, therefore, he cannot be permitted to take advantage of his own wrong in view of the provisions of Section 23 of HMA. It was also contended by Mr. Chaudhary, learned counsel for the appellant that the learned Family Court has wrongly granted divorce on the ground that the marriage between them has broken down because no such ground is available for divorce under the HMA. It is therefore prayed that the impugned judgment being illegal, perverse and contrary to law, is liable to be set aside.

We have heard the arguments addressed by learned counsel for the appellant and gone through the LCR which includes the pleadings and evidence of the parties.

The first contention of the appellant is that the learned Family Court has given undue weightage to the evidence of the respondent and has discarded the evidence of the appellant. However, this contention has no merit. On the contrary, the evidence on record (including that of the appellant) was duly considered and distinguished and elaborately discussed in the impugned judgment and only thereafter the conclusion was drawn. Record shows that the appellant had examined herself alone in support of her pleas but here is no corroboration to her testimony. Several contradictions in her testimony have been discussed in the impugned judgment. Even otherwise, the burden to prove that the respondent/husband was subjected to cruelty by the appellant, was upon him and it was for him to discharge the same by leading cogent evidence.

The settled proposition of law in civil proceedings is that the principle of proof of a fact is established on a preponderance of possibility and the respondent/husband is not required to prove his case beyond a reasonable doubt. If the evidences on record points out to the existence of MAT.APP.(F.C) 95/2017 Page 10 a particular fact, then the said fact can be accepted as having been proved. We may note that the expression “cruelty” has not been defined under the HMA. Cruelty can be mental or physical. It is easy for a party to prove physical cruelty, but mental cruelty depends on various factors.

In Samar Ghosh vs. Jaya Ghosh reported at (2007) 4 SCC 511 while dealing with the concept of mental cruelty, the Apex Court has observed as under:

“99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….”

Further, in Ravi Kumar vs. Julmidevi reported at (2010) 4 SCC 476, the Supreme Court held that cruelty is to be judged from the behavior, taking into account the entire facts and circumstances of the case and observed that:-

“20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety–it may be subtle or even brutal and may be by gestures and words…”

(emphasis supplied)

Therefore, there is no mathematical formula to assess cruelty. If the consistent behaviour of a spouse is of such a nature as to causes pain, discomfort or it brings disrespect or disrepute to the other spouse, such behavior would constitute cruelty. Trust, mutual respect, understanding and commitment sustain a marriage. When two persons live together in matrimony, it is expected that they will be tolerant towards each other’s attitude, behaviours, moods etc. and not be over sensitive towards innocent and natural behaviour/attitude or stray mood swings of the spouse.

Spouses are expected to be supportive of each others’ needs and MAT.APP.(F.C) 95/2017 Page 12 requirements which includes extending due respect to the family members of the spouse.

While appreciating the evidence in such matters, in Deb Narayan Halder vs. Anushree Halder reported at (2003) 11 SCC 303, the Supreme Court held that Courts should rely on evidence, which is contemporaneous and observed as under:-

20…..In cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friends and relatives or recorded in any other document of contemporaneous nature. If really the respondent was subjected to cruelty and harassment in the manner alleged by her, we have no doubt she would have written about such treatment to her friends and relatives with whom she may have corresponded…”

(emphasis supplied)

The evidence brought on record clearly reveals that the parties got married on 29.06.1993 and from the period from 1993 to 2001, the appellant had been staying with the husband at the place of his posting and she was visiting her parents in Delhi during this period. The husband was employed in the Border Road Organization and was posted to different MAT.APP.(F.C) 95/2017 Page 13 places outside Delhi including Arunachal Pradesh. The appellant had stayed with him at those places but she had not written any letter even to her parents, complaining about the misbehaviour of the respondent. There appears no dispute between them during their entire stay at the places of posting, as no complaint of any nature had been filed by the appellant before any authority in this regard. It is also evident that the appellant did not produce any document which could suggest that she had any complaint of any nature against the respondent during her stay with him.

During this entire period, till the filing of the complaint of demand of dowry under Section 498 A IPC, no complaint of any nature has been placed on record by the appellant against the respondent. The evidence also shows that the appellant started living in the Burari house since the year 2001 and during this period, the respondent had been visiting her in that house. The appellant has also failed to prove that it was her father who purchased the property in her name. No document has been produced on record by the appellant to prove that she was the registered owner of the property and it was sold by the respondent by fraudulently obtaining her signatures on a Power of Attorney. No document was also produced on record to prove that the construction undertaken over the plot was raised by MAT.APP.(F.C) 95/2017 Page 14 her father. During the existence of a marriage of about 13 years, no complaint of demand of dowry was ever lodged by the appellant against the respondent or his family members.

Apparently, the dispute between the parties arose sometime in March 2006. The appellant has not disputed that in March 2006, the respondent wanted to visit his ailing father at the village and he did visit him. While respondent/husband contends that it was the appellant who had refused to accompany him, the appellant took the plea that he did not take her along, which she had failed to substantiate by leading any evidence. The appellant has not produced any substantive evidence in support of her contention that she had been visiting her in-laws in the village. On the contrary, the evidence on record clearly shows that whenever she was in Delhi, she used to reside with her parents. Although she has contended that the respondent was not providing her money towards her maintenance and that of their children and it was her father who was bearing all the expenses during her stay in the Burari house, she has not produced any evidence to prove that the school fees of the children was being paid by her father. In fact, she has failed to examine her father. It is also a fact that the appellant never made any complaint to anyone including the respondent’s department MAT.APP.(F.C) 95/2017 Page 15 to the effect that he was not giving them any money for their subsistence, nor had she filed any case claiming maintenance from him. There is no contemporaneous evidence on record which can even remotely suggest that the respondent had demanded dowry and that he and his family members had beaten the appellant or that he was not taking care of her and children and was not providing financial support to them.

The other plea of the appellant is that her husband and his family members used to demand dowry and harass her and had demanded a Santro car on 04.06.2006 and, on refusal, beaten her and turned her out of the house, thus compelling her to file a complaint under Section 498A. It turns out that the husband was discharged in the said case under Section 498A IPC, which only goes to show that there was no substance in the allegations made by the appellant in her complaint under Section 498A IPC. She has also contended that the respondent had forced her to abort their child against her wishes, but has failed to produce any evidence on record to prove the said allegations. During the cross-examination of Sh. Bhopal Singh (PW-4), the respondent’s witness, a suggestion was made that the respondent had got married to another women but it remained a mere suggestion, without any proof. The appellant has also admitted in her MAT.APP.(F.C) 95/2017 Page 16 testimony that the respondent had visited her at her parental home at Gulabi Bagh, Delhi on 28.02.2006 and that after 28.02.2006, she had never visited Etah, UP, where her in-laws reside.

On the other hand, the respondent has produced on record the evidence to demonstrate that the appellant had removed all the items lying in the locker held in their joint names, without obtaining his consent. The witness from the Bank, PW-2 had duly proved the fact that the locker was operated lastly by the appellant on 06.03.2006. This fact clearly shows that after the alleged incident of 04.03.2006, the appellant had taken out all the articles lying in the locker without the consent of her husband. The respondent has also examined PW-3 who brought the records from the Border Roads Organisation which proves the fact appellant had filed that several complaints making various allegations against the respondent not only in his office, but also to several other authorities with a copy marked to his office. Enquires were made into the allegations in the complaints, but no substance was found therein and ultimately, the respondent was exonerated. The husband had taken a plea that this act of the wife had caused him grave distress, agony and had also lowered his reputation in the department, among his friends and colleagues and in the society.

In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at (2002) 2 SSC 296, the Supreme Court had observed that false police complaints would result in mental cruelty as it leads to loss of reputation and standing in the society at the instance of one’s spouse. The act of leveling of unsubstantiated charges of adultery against the husband not only during the stay of the spouses together, but also during the divorce proceedings was treated as an act of cruelty on the part of the wife. In R. Balasubramanian vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311, the Supreme Court held that an unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage.

In the present case, the evidence clearly establishes the facts that the appellant had filed a false criminal complaint under Section 498 A of IPC, and Court had discharged the respondent. On her complaints, the department had also conducted enquiry against the respondent and thereafter, exonerated him, finding no truth in such complaints. Further, during the trial, the appellant had taken a stand that her husband had got remarried to another woman by giving an suggestion of this nature to PW-4, but could not prove it.

In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported as (2003) 6 SCC 334, the Supreme Court has settled the proposition of law by observing as under:-

“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that disgusting levelling accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court.

We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her MAT.APP.(F.C) 95/2017 Page 19 like that and rendered the maintenance of matrimonial home impossible.” (emphasis added)

Again, in a recent decision in the case of Narendra vs. K. Meena reported as AIR 2016 SC 4599, applying the ratio of its earlier decision in the case of Vijaykumar (supra) the Supreme Court has reiterated that unsubstantiated allegations if levelled, amounts to mental cruelty and is a ground for divorce under Section 13(1)(i-a) of the Act. In a very recent judgment in the case of Raj Talreja vs. Kavita Talreja reported as AIR 2017 SC 2138, relying on the ratio of an earlier decision in the case of Ravi Kumar (supra), the Supreme Court has held that “reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of peers” amounting to cruelty. In the case titled Santosh Sahay vs. Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of this Court has held that false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged spouse is entitled to seek divorce on that ground.

To sum up, the allegations leveled by the appellant which she failed to substantiate even on the yardstick of preponderance of evidence, are of such a nature that would have lowered the image of the respondent in the eyes of his superiors, subordinates and peers and this act would certainly constitute cruelty. It is an undisputed position that the parties have been living separately since 04.03.2006 and in all this duration, the appellant seems to have made no effort to join the company of the respondent. Rather, her act of 06.03.2006 of cleaning out the joint locker of the parties shows an animus descendi.

In view of the above discussion, we are of the opinion that the findings of the learned Trial Court are based on the evidence on record. The argument of learned counsel for the appellant that the learned Family Court had given more weightage to the evidence of the respondent is turned down as baseless. We find no reason to unsettle the impugned judgment which is accordingly upheld. As a result, the appeal is dismissed in limine with no order as to costs.

. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).

It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.

In the case of arranged marriages where both the spouses are in the age group of 30 plus, honeymoon period is the best time to know, understand and come close to each other. This case is an exception in the sense that just a day after the marriage the parties left for their honeymoon to Shimla and returned with bitter memories and a spoiled honeymoon.

Before applying for dissolution of marriage on the ground of cruelty, the respondent/husband has shown exceptional patience in dealing with the problem inspite of facing humiliation and scandalous allegations being made against him and his family members. The case is also different in a way that after staying intermittently at the matrimonial home, within less than three months of the marriage, the appellant/wife left for her parental home and despite the respondent/husband repeatedly visiting and persuading her to join him, she served detailed legal notice making various accusations. MAT.APP. (F.C.) 68/2015 Page 2 of 17

Before replying the legal notice, again the respondent/husband tried to resolve the issues through their counsel by assuring of a separate accommodation for her on the assurance that none from their respective family would interfere for 5-6 months during that period. Even that did not succeed.

When the complaint before CAW Cell was filed on May 26, 2005, the respondent/husband while requesting for a copy of the complaint to properly reply the same the concluding lines written by him are that : ‘I again request the authority to make her understand that marriage is solemnised to form the family and not to destroy the sanskar of marriage please.

’ 5. The respondent/husband had to beat a hasty retreat when FIR No.763/2005 under Sections 498-A/406/34 IPC was registered on August 27, 2005 against him and his other family members including married sister and her husband (jija) and had to run for cover by applying for anticipatory bail. Unfortunately the counsel who applied and obtained anticipatory bail for the respondent/husband and his family from the Court of Law, was also in a soup when in a complaint under Domestic Violence Act, he was impleaded as respondent No.7 though he was in no way in domestic relationship with the appellant.

The voluminous record in this case pertains to a marriage which lasted just for three months. The marriage was solemnised on January 31, 2004. The parties at the time of their marriage were quite mature. While the respondent/husband Sunil Seth was aged about 33 years, the appellant/wife Anu Seth was aged about 31 years at that time. Both are well qualified. The respondent/husband is employed in AIIMS as UDC and the appellant/wife is Graduate and also having vocational skills i.e. Diploma in Boutique Embroidery. MAT.APP. (F.C.) 68/2015 Page 3 of 17

The differences started just a day after when the parties went to Shimla for their honeymoon on February 02, 2004. The reasons given by the parties for the unpleasant honeymoon are: (i) As per the respondent/husband, the appellant/wife did not allow him to consummate the marriage and tried her best to avoid him in the process. Not only that, she even threatened to commit suicide if he dare touch her body against her mood, willingness and consent. (ii) The appellant/wife’s stand is that while in Shimla the respondent/husband, who is short tempered and behaves cruelly and gets irritated if anything is said or done against his dictates, declared that the status of a lady in their family is that of ‘a sandal in a foot’ and his words to be treated as God’s words, an averment which did not find mention in the detailed legal notice sent by her on March 14, 2005.

It is admitted case of the parties that after honeymoon when they returned to Delhi, the relationship was unlike a newlywed couple. The appellant/wife had been visiting her parents frequently. However, it is admitted case of the parties that they were behaving normally when both of them were together in Dehradun at the alleged Grehpravesh ceremony at the house of sister of the appellant/wife as well at Hoshiarpur to perform some puja at the behest of the appellant/wife of Mataji at Hoshiarpur i.e. spiritual Guru of wife’s family. Despite puja being performed by the parties at the behest of the appellant/wife and her parents, Mataji did not permit her to join the matrimonial home. It is admitted case of the parties that the appellant/wife left the matrimonial home on April 03, 2004 alongwith her parents at about 11.00 am. It is also not disputed that on April 05, 2004 the respondent/husband visited his wife to bring her back. Thereafter when she served a legal notice, efforts to reconcile were made by him through MAT.APP. (F.C.) 68/2015 Page 4 of 17 respective advocates by holding chamber meetings. Private meetings between the two families to iron out the differences are also admitted by the parties.

Litigation started when the appellant/wife filed a complaint on May 26, 2005 before CAW Cell and FIR No.763/2005 under Section 498-A/406/34 IPC was registered on August 27, 2005 against the respondent/husband and his family. The appellant/wife has also filed a complaint under Domestic Violence Act in January, 2007 wherein sister-inlaw (jethani) and Mr.Kehar Singh, Advocate for the respondent/husband in bail application were not even spared. A maintenance petition under Section 125 Cr.P.C. was also filed by the appellant/wife in January, 2007.

On not being able to make her agreeable to join him, the respondent/husband filed divorce petition bearing HMA No. 1327/14/05 on the ground of cruelty which has been vigorously contested by the appellant/wife.

Perusal of the impugned judgment shows that by referring to the contradictions in the testimony of the witnesses, she also filed application under Section 340 Cr.P.C. which has also been dismissed vide impugned judgment.

Not only that PW-4 Sh.Trilochan Singh – a neighbour who mustered the courage to appear in the Court to depose what he had witnessed on April 03, 2004 when the appellant/wife finally left the matrimonial home in the company of her family members after allegedly creating a scene in the area was taken to task by her. PW-4 Sh.Trilochan Singh was served with the following notice by her through counsel in respect of the statement made by him before the Family Court:- ‘TRILOCHAN SINGHOCTOBER 20, 2008 SON OF LATE S. KIRPAL SINGH MAT.APP. (F.C.) 68/2015 Page 5 of 17 39A, OLD SAHIBPURA, BHUPINDER SINGH NAGAR TILAK WaGAR, NEW DELHI Sir, I am legally wedded wife of Shri Sunil Seth, your neighbour. In the divorce-petition filed by my husband in the court of Shri P.K. Barthwal ADJ, Delhi, you appeared as witness of my husband, on 04- 09-2008 as PW 4. You had filed your affidavit dated 19-12-2007 in examination in chief. In paragraph 3 of the affidavit you stated that “I say that during the last week, o n Sunday of October 2004 about noon, the respondent along, with her parents and one person came to the house of the petitioner, they misbehaved with the family members of the petitioner and created a scene by shouting while standing on the road in front of my house and later on they went along with two suitcases. When the mother of the petitioner tried to pacify the matter, she was pushed and misbehaved very badly by the respondent.” WHEREAS in cross examination you stated that “No scene had been created outside my house. I had not witnessed any manhandling or scuffle at that time.” From the above it is clear that you, in order to support the case of my husband have deliberately, intentionally and knowingly deposed in the court falsely and misled the Hon’ble Court for which I intend to file petition under section 340 Cr.P.C. and other related sections. I call upon you to send reply to my letter. In your deposition, you named one Mrs.Gogi and Mr.Balwinder Singh, her husband but have not given- their address. I have inquired and came to know that there is no neighbour of my husband namely Mrs.Gogi and Mr.Balwinder Singh. I request you to send me the addresses of Mrs.Gogi and Mr.Balwinder Singh as I want to. call them in Court for deposition because you have informed all wrong things, to the Court. I hope you will reply my this letter otherwise I shall file application in MAT.APP. (F.C.) 68/2015 Page 6 of 17 the Hon’ble court for appropriate action, under the law. (ARCHITA@ANUSETH) wife of Shri Sunil Seth H – 46, G.S. Apartments Sector-13, Rohini Delhi-110 085 C.C. – Shri Sunil Seth, with request to ask Mr. Trilochan Singh to furnish the required information in reply to my letter.’

Written submissions have been filed by the parties mainly referring to the various discrepancies appearing in the statement of the witnesses and the evidence adduced by the parties.

With a view to satisfy our judicial conscience about the correctness of the decision rendered by the Family Court granting divorce to the respondent/husband on the ground of cruelty, we will be examining only the following four incidents: (i) Filing criminal case in January, 2007 under Domestic Violence Act after about two years and nine months of leaving the matrimonial home in April, 2004 implicating her jethani Hemlata and Sh.Kehar Singh, Advocate, who represented her husband in bail matter by making false allegations. (ii) Malicious, scandalous and defamatory allegations made by the appellant/wife in the legal notice Ex.PW1/4 dated March 14, 2005 against her husband, mother-in-law, brother-in-law (jeth), married Nanand and Nandoi. (iii) Various threats being extended to the husband and his family to falsely implicate them to the extent that he was constrained to repeatedly report the matter to the police vide DDs Ex.PW2/1, Ex.PW3/1 & Ex.PW3/3. (iv) Making false allegations of dowry demand and demand of a car by the husband and in-laws. MAT.APP. (F.C.) 68/2015 Page 7 of 17

Since all the contentions, as referred to the written submissions by the parties, have been dealt with by the learned Judge, Family Court in the lengthy judgment running into 86 pages, we will not repeat the same exercise by re-examining each and every accusation made by the parties against each other and their family members or the contradictions appearing on some aspects in the testimony of the witnesses.

The accusations made above by the appellant/wife against her husband and in-laws have not been substantiated by any oral or documentary evidence.

Perusal of certified copy of the Criminal Complaint Case No.66/1/07 filed on January 08, 2007 filed under Domestic Violence Act reveals that Sh.Kehar Singh Advocate has been impleaded as R-7 though he is not related to the parties. In the said complaint case, she levelled allegations against all the respondents about dowry demands being made and not bringing a car in dowry. She again referred to 3-4 marriages being performed by her jeth (R-3). Sh. Kehar Singh, Advocate was constrained to serve the appellant/wife with a legal notice through Sh.Prem P.Tiwari, Advocate demanding compensation of ₹10 lacs mentioning therein about the professional services rendered by him by filing anticipatory bail application on behalf of his clients namely Sunil Seth (respondent/husband) his mother Raj Seth, brother Anil Seth as well on behalf of Smt.Seema Rao and Sh.Balwant Rai (married Nanad and Nandoi) in case FIR No.763/2005 under Section 498-A/406/34 IPC, PS Prashant Vihar, which was granted. Para 4 of the notice by him served upon the appellant/wife reads as under:- “4. That you, feeling aggrieved with the professional obligations and duties discharged by my aforesaid client towards his abovesaid five clients, implicate him as a co-accused at serial No.7 in the complaint filed by you under Section 12 of Protection of Women from Domestic Violence Act, 2005 for the grant of relief under Section 18, MAT.APP. (F.C.) 68/2015 Page 8 of 17 19 (i) (f), 20 and 22 of the said Act, with malafide intentions and ulterior motives to cause harassment and tarnish the image of my client at the Bar and in the society. You have intentionally and deliberately dragged my client in the aforesaid complaint without any basis under the Protection of Women from Domestic Violence Act, 2005 which is now pending in the Court of Ms. Rekha, M.M. Rohini Courts, Delhi. In the said complaint all the allegations made by you against my client are totally false, frivolous, baseless, concocted and afterthought. My client has nothing to do with the allegations levelled by you in the said complaint against my client. It is submitted that my client has already submitted a detailed reply to the said complaint and has denied all the allegations in toto.”

The legal notice Ex.PW1/4 dated March 14, 2005 sent by the appellant/wife which was addressed to (1) Sh.Sunil Seth, Husband; (2) Mrs.Raj Seth, Mother-in-law; (3) Mr.Anil Seth, Jeth; (4) Mrs.Simmy Rai, married Nanad; and (5) Mr.Balwant Rai, Nandoi. The relevant paragraphs of the said legal notice read as under:- “Paragraph No.3 “…….that the addressee No.3 have already left 3 wife and is now having 4th spouse namely Smt.Lata Seth. Smt.Lata Seth has been kept in dark to this effect for the reasons best known to you the above addressees. That you the addressee No.4 insisted for an Air conditioned car after the solemnisation of marriage on the pretext that addressee No.2 despite being widow has given 2 wheelar (sick wheeler) in the marriage of addressee No.4.” Paragraph No.10 “That you the addressees No. 2-4 & 5 have got no consideration of social values and are adament (sick adamant) to ruine (sick ruin) the mental peace and married life of my client. The addressee No.3 who is elder brother-in-law (Jeith of my client attempted to maline (sick malign) the modesty of my client but my client saved her sancitity (sick sanctity) from the ill attempts and designs of addressee No.3. My client brought to the knowledge of this incident to addressee No.1 but he ignored the same by saying that such things are common in their family and rebuked my client.” MAT.APP. (F.C.) 68/2015 Page 9 of 17 Paragraph No.11 “That my client was harassed and humilated (sick humiliated) as well as physically and mentally by you all the addressees and compelled her to leave the matrimonail (matrimonial) home on 3.4.2004. Thereafter you the addressees No.2, 4 & 5 insisted my client to have divorce from the addressee No.1 so that the marriage of the addressee No.1 can be solemnised in a rich family. My client in order to collect some clothes went to the matrimonail (sick matrimonial) home on 4-5- 2004 and found that the steel almirah in not openable condition by its key. A key maker person was called who some how managed to open the almirah who stated that almirah’s lock have been damaged by some one, after opening the almirah it was to the utter surprise of my client that clothes, suits, sarees etc. were missing, the above addressees despite being asked avoided to give any reply and made my client a laughing stock, my client could not bear and returned back.”

The respondent/husband has sent the reply Ex.PW1/5 dated May 02, 2005 wherein before replying to the accusations made in the legal notice, he has given the details of the various meetings and the proposed settlement terms which were initially agreed by the parties but subsequently she backed out on the issue of no interference by her family members at least for a period of six months in a rented accommodation.

The two cases filed by the appellant/wife i.e. petition under Section 125 Cr.P.C. and petition under Section 12 of Domestic Violence Act have been dismissed. In the above proceedings in her cross examination the appellant/wife has admitted the following facts: Cross examination of Smt.Archita, petitioner dated 10.08.2011. “……It is correct that on 05.04.2004 my husband came to take me back in the matrimonial home but I refused. Vol. Because my husband had stated that his mother does not want to see her face and I want to take you in the rented accommodation because he has not taken any rented accommodation………” MAT.APP. (F.C.) 68/2015 Page 10 of 17 Cross-examination of Smt.Archita, petitioner dated 14.10.2011. “I stayed in my matrimonial house from 1.2.04 till 3.4.04. I went for 2-3 days to Hoshiarpur with my husband for puja. I went to Honeymoon to Shimla from 2.2.04 to 07.02.04. It is correct that I had visited Dehradun at the place of my elder sister house from 28.3.04 till 30.3.04 along with my husband. It is correct that behavior of my husband was alright in the trip to Hoshiarpur and Dehradun but it is incorrect that his behavior was correct on our honeymoon. I have already mentioned about his misbehavior in honeymoon trip in my petition. It is correct that my husband had visited my parental home on 5.4.04 in order to take me along with him and he also came to take me on 13.2.05. It is wrong to suggest that respondent requested me with folded hands to accompany him but I refused. It is correct that before filing of litigation by either party efforts were made by the side of the respondent and his counsel to talk to me, my parents and my counsel for compromise of the matter. It is correct that on 23.3.05 respondent had offered me to take a premises on rent near his office ie AIIMS if I am ready and willing to live with him. It is also correct that when it was discussed that respondent will take premises on rent near AIIMMS it was also discussed that parents of both parties will not visit that home for about 5 months or 6 months. It is wrong to suggest that a fresh meeting was called on 31.3.05 for finalizing the compromise where my father refused to send me in rented accommodation. It is wrong to suggest that despite deciding that parents of both parties will not interfere in their lives my parents had interfered in our life. It is wrong to suggest that after meeting of 4.4.05 another meeting was called on 12.4.05 for settlement of the dispute. It is correct that in a petition filed by me before Hon’ble High Court of Delhi in 2009 I had admitted that I am still ready and willing to live with my husband. Q: I put to you that although you filed FIR against respondent u/s 498A/406 IPC but still you are willing and ready to live with him. Does it mean that your allegations are incorrect? Ans: I want to live with my husband as he has never demanded anything directly from me or my parents. I had filed the case of 498A against him and his family on the ground that whenever my mother in law and sister in law used to demand anything my husband (respondent) used to remain silent. Within two months of living with him I could not have understood his nature completely. MAT.APP. (F.C.) 68/2015 Page 11 of 17 It is wrong to suggest that whenever my husband had tried to take me with him I had refused on the ground that till the time Puja (Mataji) of our Guru in Hoshiapur is done and she allows me to go I will not go with him. It is wrong to suggest that I have submitted so in my statement in case before Ld. MM dealing with DV case. It is wrong to suggest that whenever my husband approached to take me with him my parents and my family members threatened him by saying that they have approached to higher levels and respondent will have to face the consequences. I had not stated before any Court that I do not want to go with my husband. At this stage witness is confronted with certified copy of her statement EX. PW-1/RX given on 15.09.10 in the case had not stated before any court that I do not want to go with my husband. At this stage witness is confronted with certified copy of Archita vs Sunil in D.V. Case from point A to A………….” “……….. It is correct that husband had never demanded car from me. Vol but he has demanded car from my father when he met him in India Gate meeting. I had inquired from the office of elder brother of respondent about his various marriages, I came to know from Mr Jain who is owner of Enkay Rubber co. that brother of respondent had married 3-4 times………..” Cross-examination of Archita, Petitioner dated 16.11.2011 “I have stated before the Hon’ble High Court in my petition that I am ready to live with my husband without any pre-condition. Just immediate after my marriage, I had gone to my matrimonial home. I was happy with my husband in my matrimonial home. My husband is not smoking or drinking. Respondent had never beaten me and I am confident that I will live happily with my husband in the matrimonial home. My mother in law has also stated in writing in CAW Cell to wish the couple to live happily………..”

In the complaint case bearing No.66/1/07 filed under Section 12 of Domestic Violence Act the appellant/wife impleaded her jethani Hemlata also as respondent despite the fact that prior to that there was no accusation against her in any regard. We have already noted that even Mr.Kehar Singh, Advocate who was a counsel at the time of seeking anticipatory bail was MAT.APP. (F.C.) 68/2015 Page 12 of 17 impleaded as respondent. The petition under Section 12 of Domestic Violence Act has been dismissed on April 29, 2016 for the following reasons: “8. Considering the testimony of complainant which has many contradictions, at one stage complainant has admitted that no act of cruelty committed upon her and that she had cordial relationship with the respondent till she resided at the matrimonial house. It is also admitted by her that incident of Tatapani were not raised in the petition under Section 125 Cr.P.C. and has been raised first time in the present petition. 9. With respect to respondent no. 2 to 7, there is no specific allegation either in the complaint nor in the petition filed by the complainant. With respect to respondent no.2 only allegation has been made that she had demanded AC car and gold bangles and the allegations are undated and not specific despite her short stay at her matrimonial house. Accordingly, complainant has failed to prove that she is an aggrieved person qua respondents no. 2 to 7. 10.With respect to respondent no.1 she has also admitted that only grievance against respondent no. 1 is that he has filed several complaints against her family and threw her against the wall on 03.04.2004, however the said allegations neither mentioned in the affidavit in evidence nor in the petition showing that it is an afterthought.” 22. Vide order dated May 07, 2015 the Petition No.202/2014 filed under Section 125 Cr.P.C. by the appellant/wife was dismissed inter-alia for the following reasons: “40. The petitioner has failed to show that she has sufficient cause for living separately and therefore, is not entitled to any maintenance u/s 125 Cr.PC in any case, she is a graduate and vocationally qualified, but if she chooses to while away her life in motivated prosecution, the respondent cannot be burdened to make payment for such sadistic conduct of the petitioner. Therefore, it is held that the petitioner is not entitled to any maintenance from the respondent. Issue no.1 is accordingly, decided in favour of the respondent and MAT.APP. (F.C.) 68/2015 Page 13 of 17 against the petitioner. ISSUE No.2 RELIEF 41.In view of my findings above on issue no.1, the petition of the petitioner u/w 125 Cr.PC is dismissed. No orders as to costs.”

In the affidavit Ex.RW1/1 by way of evidence filed by the appellant/wife in HMA Petition No.771/2006 her version in paras 20, 23, 26 to 28 is as under:- “20. I also state that at the instance of my husband, my father and brother met the petitioner at India Gate and during the course of meeting my husband, his sister and her husband raised vague and indefinite issues and made false allegations against me. My husband further stated that he finds it difficult to go to his office without car and my father declined to fulfil the said demand of A.C. Car. The sister of the petitioner openly asked my father that in case they are not ready to fulfil the said demand, they would break the marriage as her elder brother had married four times and there was no problem in getting divorce as her brother got divorce two-three times from the court and they are acquainted with the process of the court.”

“23. I also state that on 22.11.2004 at about 8 PM or on 10.1.2005 at 6.45 as alleged or otherwise, I, my father and my brother met the petitioner and his brother and misbehaved with them by using derogatory and filthy language and/or threatened. I also state that the petitioner is a very clever person who in order to create evidence against me is misusing the process of law and has been accustomed to lodge false report with the Police Station with ulterior motives and till date no action has been taken by the police against me or my family members considering the complaint to be false and baseless.” “26. I further state that I have been deserted by my husband without any reasonable cause and excuse and forgetting about the happening of the past, I am ready to join my matrimonial home provided my husband assures me of the affectionate attitude and proper living at the matrimonial home. MAT.APP. (F.C.) 68/2015 Page 14 of 17 27. I state that the FIR bearing No.763/2005 was got registered by me for the valid and cogent reasons being the fact that I was treated with utmost cruelty on account of non fulfillment of dowry demands inasmuch as the behaviour of my husband and his family members caused mental and physical cruelty to me, resulting into ruining my life. 28. I further state that I have also filed an application U/s.125 Cr.P.C. alongwith an interim application for maintenance, besides the filing of the petition U/s.12 of the Domestic Violence Act, and the same are pending adjudication before Ms.Shunali Gupta, M.M. Delhi. The certified copies of both the petitions are Ex.RW-1/9 and RW- 1/10 respectively.”

So far as various threats being extended to the respondent/husband and his family members to implicated them in a false case are concerned, DD No.23A dated October 05, 2004 marked as Ex.PW3/1 was recorded at the instance of the husband at 6:15 PM at PS Rajouri Garden about threat being extended by his wife at Vishal Cinema as well the threats earlier being extended for the previous six months on phone by the appellant/wife and her father that by using political influence they would ruin the respondent/husband and complaints would be made against him in the women cell. DD No.27 dated November 22, 2004 at PS Rajouri Garden Ex.PW3/2 is about threats given to the husband at Bikaner Sweets by the father and brother of his wife to ruin him and his family. The third report was registered vide DD No.18A dated January 10, 2005 at PS Tilak Nagar marked as PW-2/1 whereby he was asked either to pay `5 lakhs or he and his entire family would be implicated in some case/CAW cell.

It may be noted here that demand of air conditioned car was earlier attributed to only Smt.Seema (married Nanad) in the legal notice Ex.PW1/4 dated March 14, 2005 whereas during trial of HMA Petition No.771/2006 MAT.APP. (F.C.) 68/2015 Page 15 of 17 this demand was made by her husband from her father and during the meeting at India Gate where she was not even present

. 26. The appellant/wife has also placed on record the transcript Ex.RW1/5 of the conversations dated 05.05.2004, 30.06.2004, 20.12.2004, 19.03.2005, 18.05.2005, 25.07.2005, 27.07.2005, 09.09.2005 and 23.01.2006 between the parties/family members.

The learned Judge, Family Court has referred to this conversation in paras 69 and 72 to 85 of the impugned judgment. After referring to the above telephonic conversation which was consciously recorded by the appellant/wife or at her instance without other party being aware that the conversation between the two is being tape recorded to be used in litigation, was still found lacking in proving the plea taken by the appellant/wife or the accusations made by her against her husband and in law. Referring to the conversation, in para 69 finding has been returned by the learned Judge, Family Court that the appellant/wife left the matrimonial home of her own with her family member.

The allegations repeatedly made in the legal notice, written statement and other proceedings against jeth that he tried to molest her and that when it was brought to the notice of the husband, he said that it was a family culture, remained unproved. The allegation made that the jeth had married 3-4 times also remained unproved. When his wife appeared Hemlata in the witness box as PW-3, no such question was put to her. The admissions made by the appellant/wife during her cross examination in the proceedings under Domestic Violence Act extracted above shows that it was not a case of dowry demand. The meeting at India Gate on October 03, 2004 when she claimed that the car was demanded by her husband from her father is falsified from her own version recorded in the criminal cases filed by her. MAT.APP. (F.C.) 68/2015 Page 16 of 17 Otherwise also it is highly improbable that after so many meetings in Lawyer’s chamber, at personal level and other places and lot of bitterness being created after she finally left on April 03, 2004, the husband could have demanded a car from her father during meeting at India Gate fixed to save the marriage. One thing is clear from this admission of the appellant/wife that prior to that there was no demand of car though false allegation was made about this demand in the legal notice dated March 14, 2005.

In view of above admitted position as well judicial findings in the cases filed by the appellant/wife herein, the respondent/husband was able to establish that during their honeymoon not only consummation of marriage was resisted by her, even thereafter causing embarrassment and humiliation accusations have been made against him and his entire family. The allegations made against his elder brother by the complainant that he tried to molest her by way of serving a legal notice and also filing complaints implicating not only the husband but his entire family including his married sister and brother-in-law as well his counsel, with a motive to harass them, is nothing but a ruthless act on the part of the appellant/wife to cause mental cruelty and harassment to her husband and his family. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).

From the admissions of the appellant/wife during her cross examination, we have no hesitation to hold that the respondent/husband and his entire family had been subjected to worst kind of mental cruelty by the appellant/wife in this case. In all judicial proceedings, her projection as a victim at the hands of her husband and in-laws or being subjected to cruelty has been disbelieved. The learned Judge, Family Court had given valid MAT.APP. (F.C.) 68/2015 Page 17 of 17 reasons for dissolution of marriage on the issue of cruelty by discussing each and every contention thread bare in the impugned judgment.

It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.

We are of the considered opinion that the conduct of the appellant/wife in the instant case was such that it was not possible for the husband to bear such type of cruelty

Divorce on Grounds of irretrievable broken down. In the matter of : Sardar Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court) As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the […]

“ It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that […]

“Divorce.– (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with […] […]

Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words […]

“Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and […]

Meaning of Marriage in Indian Culture Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock, have pledged themselves to the institutional norms and values and promised to each other a cemented bond to sustain and maintain the marital obligation. It stands as an […]

. “god always has something for you A Key for every problem A Light for every shadow A Relief for every sorrow and A Plan for every tomorrow Very Obedient Vibhu” This is the rich encomium paid to the Court by Master Vibhu, the ten year old son of the appellant and respondent. The little […]

unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage. false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged s […]

What is Adultery and when it may be proved in Court ? Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, […]